Recent Developments In Family Law: Children’s Views In Parenting Matters

Bondelmonte & Bondelmonte & Anor [2017] HCA 8

This matter was originally heard by Justice Watts in the Family Court of Australia. The father, who was dissatisfied with His Honour’s decision, appealed it to the Full Court of the Family Court of Australia. His appeal to this Court was dismissed. The father subsequently appealed to the High Court of Australia, and he was granted permission for the appeal to be heard.

THE FACTS:

1.       The parties separated in 2010;

2.       The parties already had orders in relation to which parent the children live with and spend time with;

3.       The two boys (aged 15 and 17) were living with their father and spending time with their mother;

4.       The daughter was living with the mother and spending time with the father;

5.       The father took the two boys on a holiday to New York in January 2016, which was permitted by virtue of the existing parenting orders; and

6.       The father then informed the mother that he intended to live in New York with the two boys indefinitely.

THE CASE:

Upon being notified of the father’s intention to stay in New York with the two boys, the mother filed an application in the Family Court of Australia seeking orders to recover the children back to Australia. Orders were made by Justice Watts consistent with that application where he found that it was in their best interest to do so. Among His Honour’s considerations were the children’s views about the relocation, the children’s relationship with their mother, and the impact of such a move on their wellbeing and development.

The appeal to the High Court of Australia was made on the premise that Justice Watts erred by discounting the views of the children in wishing to stay in New York with their father. They also appealed alleging that His Honour had erred at law by not ascertaining the children’s views for the purpose of any decision made.

The High Court rejected the abovementioned grounds of appeal and found that His Honour was right and justified in his approach to this matter. The legislative provisions only require that the views which have been “expressed” by a child be considered, however ascertaining the children’s views is not mandated. The High Court also rejected the suggestion that His Honour did not place enough weight on the children’s views on the basis that there was evidence before the Court to suggest that the father had impacted upon their views.

This case has clarified the Court’s position on children’s views, and how they are used as a decision making factor in parenting proceedings. The court is not required to ascertain the children’s views, and the weight the court gives to their views is discretionary, and made on a case-by-case basis.

THE ORDERS:

1.       The appeal be dismissed.

2.       The appellant pay the second respondent’s costs of this appeal.